In the course of administrative proceedings, the authority should instruct the party on what is missing for a positive decision | In Principle

This obligation arises from Art. 79a of the Administrative Procedure Code, which has been in force for several years but does not seem to be applied very often. Instructions to the parties are obligatory regardless of the type of case—from welfare benefits to building permits.

Assumptions

Essentially, administrative procedure affects the affairs of all natural and legal persons. Therefore, it should be as simple as possible and only formalised to the extent necessary. In administrative proceedings in Poland, there is no obligation for a party to be represented by professional counsel (adwokat or attorney-at-law).

Written communications and summonses should be as comprehensible to the party as possible. The Administrative Procedure Code also provides for a number of obligations for administrative bodies related to explaining the case and its legal grounds to the parties. For example, such an obligation is contained in Art. 9 of the code, according to which: “Public administration bodies shall duly and fully inform the parties on factual and legal aspects which may influence the establishment of their rights and duties which are the subject of the administrative proceeding. The authorities shall safeguard the parties and other persons participating in the proceedings, so that neither the parties nor other persons suffer any damage due to their lack of knowledge of law, and to this end the authorities shall furnish them with necessary explanations and guidance.”

Provisions

General principles (such as those provided for in Art. 9 of the Administrative Procedure Code) are expanded upon in various places in the code. An important provision in this respect, in force since 1 June 2017, is Art. 79a: “§1. In proceedings initiated upon a party’s request, when informing the party of the opportunity to comment on the collected evidence and materials and submitted demands, a public administrative body must indicate the premises dependent on the party which have not been fulfilled or demonstrated as of the date of sending the information, which may result in issuing a decision inconsistent with the party’s demand. … §2. Within the time limit set for expressing opinions on the collected evidence and materials and submitted demands, a party may submit additional evidence to prove that the prerequisites referred to in §1 have been met.”

Looking at this provision, we conclude that if the proceedings were brought at the party’s initiative, then during the course of the proceedings—and not just before the decision is issued, but at a time allowing the party to take further action before the decision is issued—the administrative body should analyse the collected evidence in the case and indicate to the party what is missing so that the decision can be issued in accordance with the application. This is of paramount importance, as armed with that knowledge, the party can seek out the missing documents or at least will be aware in advance that certain requirements for issuing a positive decision have not been met.

Reality

Although this provision recently celebrated its fourth anniversary, Art. 79a of the Administrative Procedure Code is often neglected in practice. In many administrative proceedings, the summons required by Art. 79a §1 does not appear at all. In other cases, there seems to be a conviction on the part of administrative bodies that this provision should only apply to helpless parties, completely unaware of the legal reality, or in cases of a specific type, e.g. related to granting social welfare benefits (which, by the way, is the case in a large number of judgments based on this provision). However, the provision does not draw any such distinction between proceedings.

This point was recently made by the Province Administrative Court in Bydgoszcz in its judgment of 18 November 2020 (case no. II SA/Bd 13/20), where it indicated the need to inform the party also about very detailed and specialised legal requirements, in this case arising in the context of applications filed under the Construction Law. The case involved an application for building permit seeking to expand a building too close to the boundary of the plot, when the investor could have obtained a variance allowed by the previous law if only it had requested the variance. The court overturned the denial of the building permit, holding as follows: “The duty of the body was apparent from the wording of the application for a building permit itself. Since the applicant applied for a building permit providing for the location of the building in question, it can hardly be assumed that while applying for a location specified in the plot development plan, the applicant was also opposed to this location and thus opposed to the possibility provided for in §2(2) of the amending regulation [i.e. of requesting a variance allowed before the regulation was amended]. Even if the intent of the party was to be interpreted this way, i.e. as expressing an internally contradictory position, then, with this reading of the applicant’s position, it was the duty of the authority to explain the contradiction. §2(2) of the amending regulation does not specify in any way the procedure, method of submission or content of the application.

Therefore, failure to define the strict formal conditions of such request allows the authority to attempt to discern the actual intent of the party (in a situation where, of course, it has doubts about the party’s position) as to exercising the possibility of submitting such a request, by obliging it to make a statement to that effect, after submitting an application for a building permit. The regulation did not specify the formula for submitting an application under the procedure (§2(2) of the amending regulation), as to the method and in particular the date of its submission. Therefore, the recognition that the applicant had to do so simultaneously with submission of the application for a building permit does not follow from any provision. More importantly, the obligation of the authority to explain to the party the possibility to submit the application in question, indicating its legal basis, results from Art. 79a §1 of the Administrative Procedure Code.”

The case involved the extension and change of use of a commercial and residential building into commercial premises. Thus the permit was undoubtedly sought by a business operator with at least some knowledge of the legal side of the business. The judgment serves as a useful reminder for parties and administrative bodies of the essence of Art. 79a of the Administrative Procedure Code and how it should be applied.

Dr Maciej Kiełbowski, attorney-at-law, Administrative Disputes practice, Dispute Resolution & Arbitration practice, Wardyński & Partner